EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
as of March 1, 2006 (the "Effective Date"), by and between GERON CORPORATION, a
Delaware corporation having its principal place of business at 000 Xxxxxxxxxxxx
Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 ("Geron"), and Cambrex Bio Science
Walkersville, Inc., a Delaware corporation having its principal place of
business at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 ("CBSW").
Capitalized terms not otherwise defined herein shall have the meaning set forth
in the MSA and Project Order No. 1.
X. Xxxxx and CBSW are the parties to that certain Master Services
Agreement, dated as of September 1, 2005 (the "MSA"), pursuant to
which CBSW has agreed to perform certain services on behalf of Geron
related to the manufacture of a product containing human cells
intended for therapeutic use in humans on the terms set forth therein.
X. Xxxxx and CBSW entered into Project Order No. 1 to the MSA (the
"Project Order No. 1") effective September 1, 2005, pursuant to which
Geron is entitled, subject to certain conditions, to pay any
compensation owed to CBSW for Services performed under Project Order
No. 1 either in cash or in Geron's Common Stock (the "Shares").
C. Subject to the terms and conditions of the Second Amendment to Project
Order No.1, dated as of March 1, 2006 ("Amendment No. 2"), Geron and
CBSW have agreed that Geron shall, subject to certain conditions, be
entitled to pay up to US$4,500,000 for Services under Project Order
No. 1 by delivery of Shares, to be delivered in installment payments
of not more than US$1,000,000 each.
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS.
1.1 As payment of the first Installment Payment specified in Project
Order No. 1, Geron will issue and deliver certificates for
113,895 Shares. Upon issuance and delivery of the certificate(s)
for the Shares, all Shares shall be duly authorized and validly
issued and represent fully paid shares of Geron's Common Stock.
2. CLOSING; DELIVERY.
2.1 The consummation of the transaction contemplated by this
Agreement (a "Closing") shall be held at such time and place as
is mutually agreed upon between the parties, but in any event no
later than five (5) business days after the Effective Date of
this Agreement (the "Closing Date"). At the Closing, Geron shall
deliver to CBSW one or more certificates representing all of the
Shares, which Shares shall be issued in the name of CBSW or its
designee and in such denominations as CBSW shall specify.
2.2 Geron's obligations to issue and deliver the stock certificate(s)
representing the Shares to CBSW at the Closing shall be subject
to the following conditions, which may be waived by Geron:
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2.2.1 the covenants and obligations that CBSW is required to
perform or to comply with pursuant to this Agreement, at or
prior to the Closing, must have been duly performed and
complied with in all material respects; and
2.2.2 the representations and warranties made by CBSW herein
shall be true and correct in all material respects as of the
Closing Date.
2.3 CBSW's obligation to accept delivery of the stock certificate(s)
representing the Shares at the Closing shall be subject to the
following conditions, any one or more of which may be waived by
CBSW:
2.3.1 the covenants and obligations that Geron is required to
perform or to comply with pursuant to this Agreement, at or
prior to the Closing, must have been duly performed and
complied with in all material respects;
2.3.2 Geron shall have available under its Certificate of
Incorporation sufficient authorized shares of Common Stock
to issue the Shares to CBSW; and
2.3.3 the representations and warranties made by Geron herein
shall be true and correct in all material respects as of the
Closing Date.
3. RESTRICTIONS ON RESALE OF SHARES.
3.1 Legends. CBSW understands and acknowledges that the Shares are
not registered under the Securities Act of 1933 (the "Act"), and
that under the Act and other applicable laws CBSW may be required
to hold such Shares for an indefinite period of time. Each stock
certificate representing Shares shall bear the following legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). ANY TRANSFER
OF SUCH SECURITIES SHALL BE INVALID UNLESS A REGISTRATION
STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN
THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO GERON, SUCH
REGISTRATION IS UNNECESSARY FOR SUCH TRANSFER TO COMPLY WITH THE
ACT. THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
OF THE COMMON STOCK PURCHASE AGREEMENT, DATED MARCH 1, 2006. A
COPY OF THE AGREEMENT CAN BE OBTAINED FROM THE SECRETARY OF
GERON."
3.2 Limits on Sales. CBSW agrees that if it decides to resell some or
all of the Shares, it will do so only in an appropriate manner
through orderly sales executed through a top-tier brokerage firm,
and based upon whether the shares are registered or unregistered,
i.e., on the Nasdaq National Market or in a Rule 144A compliant
transaction.
3.3 Further Limitations. The Company shall not be required (i) to
transfer on its books any Shares that have been sold or otherwise
transferred in violation of any of the provisions of this
Agreement or applicable securities laws; or (ii) to treat as
owner of such Shares or to accord the right to vote or pay
dividends to any purchaser or other transferee to whom such
Shares shall have been so transferred in violation of any of the
provisions of this Agreement or applicable securities laws.
4. REGISTRATION RIGHTS
4.1 Geron agrees to make commercially reasonable efforts to file with
the Securities and Exchange Commission (the "Commission") within
ten (10) business days after the Closing Date, a registration
statement under the Act (the "Registration Statement"), on Form
S-3 or other appropriate form, so as to permit a non-underwritten
public offering and resale of the Shares under the Act by CBSW.
Geron agrees to diligently pursue making the Registration
Statement effective. Geron will make commercially reasonable
efforts to notify CBSW of the effectiveness of the Registration
Statement within one (1) business day of receiving notice from
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the Commission declaring the Registration Statement effective,
but no later than the close of business (Pacific Time) of the
second business day after receipt of such notice from the
Commission.
4.2 Geron shall notify CBSW as promptly as possible of any review
initiated by the Commission with respect to any such Registration
Statement.
4.3 Geron will maintain the Registration Statement and any
post-effective amendment thereto filed under this Section 4
effective under the Act until the earliest of (i) the date that
none of the Shares covered by such Registration Statement are
issued and outstanding, (ii) the date that all of the Shares have
been sold pursuant to such Registration Statement, (iii) the date
CBSW receives an opinion of counsel to Geron, which counsel shall
be reasonably acceptable to CBSW, that the Shares may be sold
under the provisions of Rule 144, (iv) the date that all Shares
have been otherwise transferred to persons who may trade such
shares without restriction under the Act, and Geron has delivered
a new certificate or other evidence of ownership for such
securities not bearing a restrictive legend, or (v) the date all
Shares may be sold at any time pursuant to Rule 144(k) or any
similar provision then in effect under the Act in the opinion of
counsel to Geron, which counsel shall be reasonably acceptable to
CBSW.
4.4 Geron, at its expense, shall furnish to CBSW with respect to the
Shares registered under the Registration Statement such
reasonable number of copies of the Registration Statement,
prospectuses and preliminary prospectuses in conformity with the
requirements of the Act and such other documents as CBSW may
reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Shares by CBSW, provided,
however, that the obligation of Geron to deliver copies of
prospectuses or preliminary prospectuses to CBSW shall be subject
to the receipt by Geron of reasonable assurances from CBSW that
CBSW will comply with the applicable provisions of the Act and of
such other securities or blue sky laws as may be applicable in
connection with any use of such prospectuses or preliminary
prospectuses.
4.5 All fees, disbursements and out-of-pocket expenses and costs
incurred by Geron in connection with the preparation and filing
of the Registration Statement under Section 4.1 and in complying
with applicable securities and Blue Sky laws (including, without
limitation, all attorneys' fees of Geron) shall be borne by
Geron. CBSW shall bear the cost of all fees and expenses of
CBSW's counsel.
4.6 Geron will advise CBSW promptly after it shall receive notice or
obtain knowledge of the issuance of any stop order by the
Commission delaying or suspending the effectiveness of the
Registration Statement or of the initiation of any proceeding for
that purpose, and Geron will use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain
its withdrawal as promptly as possible if such stop order should
be issued.
4.7 With a view to making available to CBSW the benefits of Rule 144
(or its successor rule) and any other rule or regulation of the
Commission that may at the time permit CBSW to sell the Shares to
the public without registration, Geron covenants and agrees to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144, until the earliest of (A)
such date as all of the Shares may be resold pursuant to Rule
144(k) or any other rule of similar effect or (B) such date as
all of the Shares shall have been resold; and (ii) file with the
Commission in a timely manner all reports and other documents
required of Geron under the Act and under the Exchange Act of
1934, as amended.
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4.8 CBSW will cooperate with Geron in all respects in connection with
this Agreement, including timely supplying all information
reasonably requested by Geron (which shall include all
information regarding CBSW and proposed manner of sale of the
Shares required to be disclosed in any Registration Statement)
and executing and returning all documents reasonably requested in
connection with the registration and sale of the Shares and
entering into and performing their obligations under any
underwriting agreement, if the offering is an underwritten
offering, in usual and customary form, with the managing
underwriter or underwriters of such underwritten offering.
Nothing in this Agreement shall obligate CBSW to consent to be
named as an underwriter in any Registration Statement.
5. INDEMNIFICATION.
5.1 Geron agrees to indemnify and hold harmless CBSW (and each
person, if any, who controls CBSW within the meaning of Section
15 of the Act, and each officer and director of CBSW) against any
and all losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), joint or several, directly or
indirectly based upon or arising out of (i) any untrue statement
or alleged untrue statement of any material fact contained in the
Registration Statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein or used in
connection with the offering of the Shares, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and Geron will
reimburse each such indemnified party for any legal or any other
expenses reasonably incurred by them in connection with
investigating, preparing, pursuing or defending any such loss,
claim, damage, liability, action or proceeding, except insofar as
any such loss, claim, damage, liability, action, proceeding or
expense arises out of or is based upon (A) an untrue statement or
alleged untrue statement or omission or alleged omission made in
the Registration Statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information
furnished to Geron by CBSW or such other person expressly for use
in the preparation thereof, (B) the failure of CBSW to comply
with its covenants and agreements contained in Sections 7.1 or
7.5.2 hereof or (C) any misstatement or omission in any
prospectus that is corrected in any subsequent prospectus that
was delivered to CBSW prior to the pertinent sale or sales by
CBSW. Such indemnity shall remain in full force and effect,
regardless of any investigation made by such indemnified party
and shall survive the transfer of the Shares by CBSW.
5.2 CBSW agrees to indemnify and hold harmless Geron (and each
person, if any, who controls Geron within the meaning of Section
15 of the Act, each officer of Geron who signs the Registration
Statement and each officer and director of Geron) from and
against losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), joint or several, directly or
indirectly based upon or arising out of, (i) any failure of CBSW
to comply with the covenants and agreements contained in Sections
7.1 and 7.5.2 hereof or (ii) any untrue statement of a material
fact contained in the Registration Statement or any omission of a
material fact required to be stated in the Registration Statement
or necessary in order to make the statements in the Registration
Statement not misleading if such untrue statement or omission was
made in reliance upon and in conformity with written information
furnished to Geron by or on behalf of CBSW specifically for use
in preparation of the Registration Statement; provided, however,
that CBSW shall not be liable in any such case for (A) any untrue
statement or omission in the Registration Statement, prospectus,
or other such document which statement is corrected by CBSW and
delivered to Geron prior to the sale from which such loss
occurred, (B) any untrue statement or omission in any prospectus
which is corrected by CBSW in any subsequent prospectus, or
supplement or amendment thereto, and delivered to Geron prior to
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the sale or sales from which a loss or liability arose, or (C)
any failure by Geron to fulfill any of its obligations under
Section 5.1 hereof.
5.3 Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant
to this Section 5, such indemnified person shall notify the
indemnifying person in writing of such claim or of the
commencement of such action, but the omission to so notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party under this Section 5 (except
to the extent that such omission materially and adversely affects
the indemnifying party's ability to defend such action) or from
any liability otherwise than under this Section 5. Subject to the
provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person
shall be entitled to participate therein, and, to the extent that
it shall elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, shall be entitled to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof,
such indemnifying person shall not be liable to such indemnified
person for any legal expense subsequently incurred by such
indemnified person in connection with the defense thereof,
provided, however, that if there exists or shall exist a conflict
of interest that would make inappropriate, in the reasonable
opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such
indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that
no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel (together with
appropriate local counsel) for all indemnified parties. In no
event shall any indemnifying person be liable in respect to any
amounts paid in settlement of any action unless the indemnifying
person shall have approved the terms of such settlement. No
indemnifying person shall, without the prior written consent of
the indemnified person, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified person
is a party, unless such settlement includes an unconditional
release of such indemnified person from all liability on claims
that are the subject matter of such proceeding.
5.4 The provisions of this Section 5 shall survive the termination of
this Agreement.
6. REPRESENTATIONS AND ACKNOWLEDGEMENT OF GERON.
Geron hereby represents, warrants and covenants to CBSW as follow:
6.1 Organization, Good Standing and Qualification. Geron is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as now
conducted and as presently proposed to be conducted. Geron is
duly qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction in which the failure to
so qualify would have a material adverse effect on its business
or properties.
6.2 Authorization. Geron has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and thereby and has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement. Upon execution and delivery, this
Agreement will constitute a valid and binding obligation of Geron
enforceable against Geron in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer,
liquidation or similar laws relating to, or affecting generally,
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the enforcement of creditor's rights and remedies or by other
equitable principles of general application from time to time in
effect.
6.3 Valid Issuance of Common Stock. The Shares, when issued, sold and
delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly
authorized and issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer
under this Agreement and applicable state and federal securities
laws.
6.4 Legal Proceedings and Orders. There is no action, suit,
proceeding or investigation pending or threatened against Geron
that questions the validity of this Agreement or the right of
Geron to enter into this Agreement or to consummate the
transactions contemplated hereby, nor is Geron aware of any basis
for any of the foregoing. Geron is neither a party nor subject to
the provisions of any order, writ, injunction, judgment or decree
of any court or government agency or instrumentality that would
affect the ability of Geron to enter into this Agreement or to
consummate the transactions contemplated hereby.
7. REPRESENTATIONS AND ACKNOWLEDGMENTS OF CBSW.
CBSW hereby represents, warrants, acknowledges and agrees that:
7.1 Investment. CBSW is acquiring the Shares for CBSW's own account,
and not directly or indirectly for the account of any other
person. CBSW is acquiring the Shares for investment and not with
a view to distribution or resale thereof, except in compliance
with the Act and any applicable state law regulating securities.
7.2 Access to Information. CBSW has consulted with its own attorney,
accountant, or investment advisor as CBSW has deemed advisable
with respect to the investment and has determined its suitability
for CBSW. CBSW has had the opportunity to ask questions of, and
to receive answers from, appropriate executive officers of Geron
with respect to the terms and conditions of the transactions
contemplated hereby and with respect to the business, affairs,
financial condition and results of operations of Geron. CBSW has
had access to such financial and other information as is
necessary in order for CBSW to make a fully informed decision as
to investment in Geron, and has had the opportunity to obtain any
additional information necessary to verify any of such
information to which CBSW has had access. CBSW acknowledges that
neither Geron nor any of its officers, directors, employees,
agents, representatives, or advisors have made any representation
or warranty other than those specifically expressed herein.
7.3 Business and Financial Expertise. CBSW further represents and
warrants that it has such business or financial expertise as to
be able to evaluate its investment in Geron and purchase of the
Shares.
7.4 Speculative Investment. CBSW acknowledges that the investment in
Geron represented by the Shares is highly speculative in nature
and is subject to a high degree of risk of loss in whole or in
part; the amount of such investment is within CBSW's risk capital
means and is not so great in relation to CBSW's total financial
resources as would jeopardize the personal financial needs of
CBSW in the event such investment were lost in whole or in part.
7.5 Unregistered Securities. CBSW acknowledges that:
7.5.1 CBSW must bear the economic risk of investment for an
indefinite period of time because the Shares have not been
registered under the Act and therefore cannot and will not
be sold unless they are subsequently registered under the
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Act or an exemption from such registration is available.
Geron has made no agreements, covenants or undertakings
whatsoever to register any of the Shares under the Act,
except as provided in Section 4 above. Geron has made no
representations, warranties or covenants whatsoever as to
whether any exemption from the Act, including, without
limitation, any exemption for limited sales in routine
brokers' transactions pursuant to Rule 144 under the Act,
will become available and any such exemption pursuant to
Rule 144, if available at all, will not be available unless:
(i) a public trading market then exists in Geron's common
stock, (ii) Geron has complied with the information
requirements of Rule 144, and (iii) all other terms and
conditions of Rule 144 have been satisfied.
7.5.2 Transfer of the Shares has not been registered or qualified
under any applicable state law regulating securities and,
therefore, the Shares cannot and will not be sold unless
they are subsequently registered or qualified under any such
act or an exemption therefrom is available. Geron has made
no agreements, covenants or undertakings whatsoever to
register or qualify any of the Shares under any such act.
Geron has made no representations, warranties or covenants
whatsoever as to whether any exemption from any such act
will become available.
7.5.3 CBSW hereby certifies that it is an "Accredited Investor"
as that term is defined in Rule 501 under the Act.
7.6 Authorization. CBSW has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions
contemplated hereby and thereby and has taken all necessary
action to authorize the execution, delivery and performance of
this Agreement. Upon execution and delivery, this Agreement will
constitute a valid and binding obligation of CBSW enforceable
against CBSW in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer,
liquidation or similar laws relating to, or affecting generally,
the enforcement of creditor's rights and remedies or by other
equitable principles of general application from time to time in
effect.
8. TAX ADVICE. CBSW acknowledges that CBSW has not relied and will not
rely upon Geron or Geron's counsel with respect to any tax
consequences related to the ownership, purchase, or disposition of the
shares. CBSW assumes full responsibility for all such consequences and
for the preparation and filing of all tax returns and elections which
may or must be filed in connection with the shares.
9. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly
given on the date of delivery if delivered personally or by facsimile,
or one day, not including Saturdays, Sundays, or national holidays,
after sending if sent by national overnight delivery service, or five
days, not including Saturdays, Sundays, or national holidays, after
mailing if mailed by first class united states mail, certified or
registered with return receipt requested, postage prepaid, and
addressed as follows:
To Geron at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
0
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Senior Director, Legal
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To CBSW at: Cambrex Bio Science Walkersville
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: VP of Business Development
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Cambrex Corporation
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10. BINDING EFFECT. This agreement shall be binding upon the heirs, legal
representatives and successors of Geron and of CBSW.
11. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the state of Delaware, without giving
effect to its conflicts of laws provisions.
12. INVALID PROVISIONS. In the event that any provision of this agreement
is found to be invalid or otherwise unenforceable by a court or other
tribunal of competent jurisdiction, such invalidity or
unenforceability shall not be construed as rendering any other
provision contained herein invalid or unenforceable, and all such
other provisions shall be given full force and effect to the same
extent as though the invalid and unenforceable provision was not
contained herein.
13. COUNTERPARTS. This agreement may be executed in any number of
identical counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
14. AMENDMENTS. This agreement or any provision hereof may be changed,
waived, or terminated only by a statement in writing signed by the
party against whom such change, waiver or termination is sought to be
enforced.
15. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at
all times from and after the date hereof with respect to all of the
matters described herein, and to execute such further assignments,
releases, assumptions, amendments of the agreement, notifications and
other documents as may be reasonably requested for the purpose of
giving effect to, or evidencing or giving notice of, the transactions
contemplated by this agreement.
16. ENTIRE AGREEMENT. This agreement, and the MSA, and Project Order No. 1
thereto, constitute the entire agreement of the parties pertaining to
the shares and supersede all prior and contemporaneous agreements,
representations, and understandings of the parties with respect
thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
Geron Corporation
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
By: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
Cambrex Bio Science Walkersville, Inc.
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
By: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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